Tag Archives: Gaithersburg

Does the Gaither-Split Violate the Constitution?

Where the Proposed Legislative Map Divides Gaithersburg

The portion of the Legislative Redistricting Plan for Montgomery County takes a status quo approach. However, it still might violate the Maryland Constitution.

What’s Not a Problem

The major change from the current arrangement is that district 9A, centered in Howard County, now takes in a portion of northern Montgomery County around Damascus. This inclusion of a portion of a ninth (!) legislative district reflects Montgomery’s growth.

It also not so coincidentally happens to aid Democratic Sen. Katie Fry Hester who exchanges a bit of very Republican Carroll County for this bit of Montgomery County. Damascus may be among the more Republican areas of Montgomery, but it is probably friendlier turf for her than the portion of Carroll she lost.

None of this should pose a problem for the plan.

What is a Problem

Instead, the potential problem centers on the new version of District 17. When drawn after the 2010 Census, the district included all of Rockville and Gaithersburg. The new version doesn’t. The dark black lines on the above map show my rough look at where the proposed legislative district boundaries cut into the City of Gaithersburg.

Over the past decade, Gaithersburg annexed areas around Quince Orchard and Shady Grove North that are not in the new D17. Larger areas of northeast Gaithersburg just west of Washington Grove are also outside D17. Most of the excised portions are in D39 but the Shady Grove North bit is in D19.

This invites a constitutional challenge because Article III, Section 4 of the Maryland Constitution states that that legislative district boundaries must give “due regard” to “the boundaries of political subdivisions.”

The Maryland Court of Appeals gave life to this provision when it invalidated the 2001 map, in part for violating too many boundaries. In particular, more districts straddled the Baltimore City and County boundary than necessary.

The Court made clear the importance of this requirement in its decision, writing: “Non-compliance with a state constitutional requirement is permitted only when it conflicts with a federal requirement or another more important Maryland constitutional requirement.”

The State might argue that hiving off part of Gaithersburg was needed so that the district was not overpopulated. But this feels like a dud. After all, the state could have just split Rockville and Gaithersburg into separate districts that included all of each municipality.

The Legislature has a couple of options short of completely redrawing the plan. First, it could redraw the map to include the currently excluded parts of Gaithersburg. Except that this change might well make the district exceed the acceptable population deviation of +/- 5%. The district is already 2.5% larger than ideal.

If this doesn’t make D17 too large, it would solve the problem and make it difficult to challenge the map on this basis. My guess is that the district would end up overpopulated, as the line drawers would otherwise have done this in the first place.

If it does make it too large, the State could try to justify the deviation as desirable to adhere to municipal boundaries. But this faces the same problem as the proposed map in that one could have just put the two big municipalities into separate districts instead.

The State could roll the dice with the proposed map as it stands. Beyond explaining that the portions sliced off Gaithersburg are small and partially not in the current districts, the State could argue that this change was needed to preserve the cores of current districts. The Special Master argued that this was one reason that the 1992 Plan, which was upheld by the Court, did not violate the Maryland Constitution.

This argument seems unlikely to fly, however, because the Court of Appeals explicitly rejected it in 2001, stating: “The premise on which the Special Master proceeded, that the due regard requirement may be subordinated to achieve a ‘rational goal,’ and the State’s argument that the provision must give way to ‘more important considerations,’ also are wrong.”

The Court goes out of its way to make clear that this provision of the Maryland Constitution limits the state’s power even though the “due regard” provision is less strongly worded than similar provisions in other states. In short, it’s there for good reason, such as limiting partisan gerrymandering, and the State cannot ride roughshod over it.

The Court might still uphold it as a de minimis (i.e. trivial) violation of the provision. It could also rule that violations of municipal boundaries are less serious than the violations of county boundaries. Baltimore City is unusual in that it is the only municipality that is also a county equivalent, so the Court could distinguish these questions about due regard for political boundaries from those at issue in its 2001 decision.

Still, it’ll make the inevitable legal challenge to the Legislative Redistricting Plan a lot more interesting if this remains in the final plan. As in 2001, a victory for plan opponents could result in a court-drawn plan because time is short before the primary.

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Gaithersburg Electeds Endorse Balcombe

By Adam Pagnucco.

Council At-Large candidate Marilyn Balcombe has announced endorsements from three elected officials in Gaithersburg: Mayor Jud Ashman and City Council Members Mike Sesma and Neil Harris.  Balcombe is the long-time President and CEO of the Gaithersburg-Germantown Chamber of Commerce and lives in Germantown.  Gaithersburg, including both the incorporated and unincorporated areas, has more than 40,000 registered Democrats of whom roughly 3,500 have voted in each of the last three mid-term Democratic primaries.

Left to right: Sesma, Harris and Balcombe, Ashman.  Credit: Balcombe for Council Facebook page.

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M-83 Supporters Get a Win

By Adam Pagnucco.

Back on November 3, David Lublin wrote that the County Council had placed the planned Upcounty highway M-83 “in the freezer.”  We agree with that take with one addition: if and when M-83 comes out of that freezer, it will be ready to serve.  That’s because instead of killing the road, the resolution passed by the County Council has preserved it for a future county government to build.

To understand what has happened, one has to consider the goals and challenges of road supporters and opponents.  The supporters want to fund its construction.  That’s tough because the road will cost roughly half a billion dollars and the county is reducing its annual issues of general obligation bonds to trim future debt service.  Opponents want to remove the road from the county’s master plans.  They believed they had a chance to do that since six Council Members said they opposed M-83 during the 2014 elections.  But that has not happened.

The council’s resolution, passed on Halloween, did not implement the agendas of either side.  Its action language is worth reading word for word.

The County Council for Montgomery County, Maryland approves the following resolution:

  1. The Council supports expanded capacity on I-270, the Corridor Cities Transitway, Bus Rapid Transit on or near MD 355, and improvements on MD 355. These improvements will provide significant, immediate relief for Upcounty residents. These improvements align with our economic development strategies, providing the broadest and most diverse benefits, and minimize impervious surface, stormwater runoff, carbon emissions, and other environmental impacts.

  2. The Council directs the Montgomery County Planning Board not to assume additional road capacity from the northern extension of Midcounty Highway when calculating the land use – transportation balance in future master plans, including but not limited to the upcoming Gaithersburg East Master Plan and the Germantown Plan for Town Sector Zone. This step ensures that any new development allowed under these plans does not rely on the northern extension of Midcounty Highway, while retaining the right-of-way for this extension in these plans.

Road supporters did not like the omission of M-83 from the list of projects supported by the council.  They should have no argument with the idea of not including M-83’s capacity in calculating infrastructure needs for future development.  That could help prevent the road from filling up immediately after it’s built (if it’s built).  But the last sentence referring to “retaining the right-of-way for this extension” is a big win for supporters of M-83.

Why does this matter?  A casual perusal of land ownership maps from the State Department of Assessments and Taxation shows massive county land holdings in the vicinity of M-83’s preferred alternative.  Identifying every one of the dozens of parcels owned by the county and county-affiliated entities there would be a time-consuming research project.

A sample of county-owned land for M-83 near Watkins Mill Road and Great Seneca Creek.

Instead, we asked the county Department of Transportation’s project manager for M-83 how much of the right-of-way for the road’s preferred alternative was currently owned by the county and state.  We received this response.

Dear Mr. Pagnucco:

Thank you for your interest in the Midcounty Corridor Study (M-83) project.  Per our preliminary assessment, approximately 60% ROW for M-83 has been dedicated or reserved and another 24% is in parklands owned by the County’s Parks.

Should you have any questions, please contact me.

Best regards,

Gwo-Ruey (Greg) Hwang, P.E.

Capital Projects Manager

That’s right, folks – the county and Park and Planning together control 84% of the right-of-way for M-83 right now.

Why does this matter?  Let’s remember the history of the Intercounty Connector.  The highway had been in master plans for decades.  As of 1997, the county and state owned more than half the right-of-way for the ICC.  The following year, Governor Parris Glendening announced he was killing the project and later told the state government to sell part of its right-of-way.  But the state did not sell off all its right-of-way and in fact purchased some of it after Glendening’s announcement.  Continued state ownership of the ICC’s right-of-way made it much easier for Glendening’s successor, Governor Bob Ehrlich, to reverse his decision and begin construction.

So it may be with M-83.  The county’s holdings of right-of-way for the project may be even greater as a percentage of its acreage than the state’s holdings of the ICC were a decade before its construction.  The resolution by the council explicitly calls for “retaining the right-of-way” in the master plans, suggesting that the county’s holdings will not be sold.  And the road has not been removed from any master plans, a key goal of opponents.

M-83 supporters should have hope.  M-83 opponents should beware.  Both sides have a lot of work to do in next year’s elections.

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Council Places M-83 in the Freezer

By a 7-2 vote with Nancy Floreen (D-At Large) and Craig Rice (D-2) opposed, the Montgomery County Council approved a resolution sponsored by Councilmember Hans Riemer (D-At Large) telling the Planning Board to ignore that the controversial M-83 road in making future plans.

The controversy pits Upcounty residents against smart growth and environmental opponents of new roads. Many Upcounty residents in communities like Clarksburg would love to see the long promised alternative route to their communities built in order to alleviate excruciating traffic. Environmentalists and smart growthers think that new roads promote the use of cars and sprawl.

Compromise or Just Spin?

The resolution is being presented by Riemer as a compromise because it keeps M-83 in the Master Plan but tells the Planning Board to act as if it will never be built. Nancy Floreen outlined the politics of spin surrounding this resolution in explaining her “no” vote:

There is nothing in here that says we are going to build M-83. So that is a win for the environmentalist, I guess. And, there is nothing in here that says we are going to build M-83, which is a win for the UpCounty.  I suppose, I should be happy about this because we leave M-83 on the master plan for the future, which is a good thing. But, because we are doing something that is designed to fuel public perception one way or the other, I think it is just plain irresponsible. It is a gratuitous slap in the face to the people who relied on the master plan. And for the people who are opposed to it, it continues the argument ad infinitum.

Indeed, the resolution in amenable to being messaged in a variety of ways to different audiences. Environmentalists and smart growthers can be told it all but kills the road for the time being. M-83 supporters will be told that it’s still in the Master Plan and that the anti-road people aren’t happy for this reason.

Road Opponents Carried the Day But this Street Fight Continues

Riemer, an M-83 opponent, is deeply misguided to the extent he believes that the sop of maintaining M-83 in the Master Plan will appease road supporters. They’re not fooled. The “it’s a compromise” argument only annoys because it comes across as disingenuous to people who wanted this road built yesterday.

Marilyn Balcombe, President and CEO of the Gaithersburg-Germantown Chamber of Commerce, is campaigning for at at-large seat on the County Council and making this an issue:

[T]o invoke the Paris Climate Agreement for any project that someone may disagree with is a very slippery slope. . . . Does this proposed resolution mean that we are never building any more roads in the County?

Not a bad substantive policy question in this election year.

Politically, the impact of this issue remains unclear. It’s a great way to rally Upcounty residents who want the road. But how many vote in the key Democratic primary?

Environmentalists are indeed are unhappy that the county didn’t just kill the road outright. Another county council can take the road out of the freezer and thaw it out. They have a lot of support Downcounty but it’s more diffuse pro-environmentalism rather than opposition to this particular project. Can they rally people beyond the small set of usual suspects to oppose the road?

A more likely strategy is that environmental and smart growth groups endorse against pro-M-83 candidates but mention other more compelling issues or general concerns about climate change in their messaging to voters.

Time to Get Off the Pot

While Riemer presents the resolution as a compromise that leaves all unhappy, another way to see this decision is that they decided not to decide. Often, waiting is a good decision. In the case, however, it has the strong whiff of kicking the can down the road to no purpose as the major fact we can expect to change is that traffic will get worse.

The “solution” that our elected officials voted for is really no solution at all. If councilmembers are against the road for whatever reason–the environment, smart growth, the lack of funds–they should just tell the people by killing it. Similarly, supporters should demand a resolution that actively prepares for it and be ready to explain how they will fund it.

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Del. Kumar Barve to Announce for the Eighth

Kumar

Delegate Kumar Barve (D-17) intends to announce very soon that he will run for the Eighth Congressional District made vacant by Chris Van Hollen’s senatorial bid.

Career

Though born in New York, Barve went to Paint Branch High School. Barve was first elected to the House of Delegates in 1990, so he is now in his seventh state (pun unintended) legislative term. Currently, he chairs the Environment and Transportation Committee. Barve has also served previously as Majority Leader.

Pioneer

While it may seem ordinary now, it was a big deal when Del. Barve was first elected in 1990, as he was the first Indian American to win election to any state legislature in the country. At the time, he was also the only nonwhite member of the Montgomery delegation.

Kumar has supported efforts of other South Asians to win election, including Del. Aruna Miller (D-15) and former Del. Sam Arora (D-19). Miller and Barve have remained close. But no one was more peeved when Arora reneged on his commitment to back marriage equality–a bill that Barve sponsored and supported strongly.

Barve has the potential to receive substantial ethnic backing from Indian Americans not just locally but nationally. Currently, Rep. Ami Bera (D-CA) is the sole South Asian American in Congress. Barve provides a strong opportunity to increase their number. He would also be the first Hindu Indian American in Congress and only its second Hindu member.

Territory

The 17th Legislative District includes all of the Cities of Rockville and Gaithersburg. The bad news for Barve is that the Eighth Congressional District includes Rockville but not Gaithersburg so about one-half of his legislative district is outside the congressional district that he seeks to represent.

The good news for him is that Rockville voters participate in primaries at a much a higher rate than in Gaithersburg, so he is hemorrhaging much less support due to district boundaries than appears at first glance. Until 2014, Kumar also represented much smaller Garrett Park, which is also in the Eighth.

Nonetheless, District 17 casts fewer Democratic primary votes than in either District 18 or District 20. Assuming that either or both Sens. Rich Madaleno (D-18) or Jamie Raskin (D-20) run, they each start out already representing at least 50% more primary voters. It will take more effort–and more money–for Barve to introduce himself to new voters.

Overlap and Challenges

I don’t see real overlap between Del. Barve and other candidates. He’ll probably start out with more experience in office than any of them. But they will all essentially share rather similar principles and struggle to accentuate differences.

Kumar’s real challenges are to raise money and to run a disciplined campaign. As for all candidates, he will need to spend far more time raising money than any sane person desires. And he will have to make sure it is spent very wisely.

Another key question is whether he can attract volunteers on the same scale and organize them as well as candidates who made their first bid for office more recently, and thus may have more of their original core supporters around to help them.

It will be interesting to see how much traction Del. Barve gains in the race. But I don’t think he will get lost in the shuffle. He is outspoken and certainly as ambitious as anyone seeking this seat.

Final Question

Will Del. Barve be tempted to switch to the Sixth District if Rep. Delaney jumps into the Senate race? After all, he lives in the Sixth even if his legislative district falls equally in the Eighth.

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New Urbanism Succeeds Yet the Greater Greater Washington Agenda Does Not

kentlandsdowntown

Downtown in the Kentlands–a Succssful Example of New Urbanism in Montgomery County

Part I (“They’ve Come Undone”) in this series overviewed the area’s recent rejection of several pricey transit projects. Part II (“Why has the GGW Agenda Stalled”) began to explain why, focusing on their high cost and Metro’s ills. Today, I look at the disconnect between Greater Greater Washington’s vision for high-density transit-oriented development and the new urbanism that has been embraced by many suburbanites.

The reaction against suburban sprawl, well-detailed in Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, led to many thoughtful efforts on how to build more workable communities and the new urbanism movement.

Despite its many excellent contributions–and they are numerous–Greater Greater Washington’s (GGW) more extreme vision that ultimately rejects less dense versions like the Kentlands shown above have helped undercut support for its agenda for expensive light-rail and streetcar projects.

The American Dream

The ideal for most American families is not a Manhattan apartment but remains a single-family residence with a yard. Parents still envision their kids playing in the yard rather than running down to Busboys and Poets.

That home doesn’t necessarily have to be on the type of large lot associated with suburban sprawl. For many, the dream can be a townhouse, as long as they still have their own piece of grass to call their own and hold barbecues. Even people who move back into central cities often choose these sorts of homes over new apartments.

Urban Living is Expensive

Many people who like the urban dream, however, still have trouble realizing it. Precisely because it is desirable for reasons oft-outlined by GGW, they cannot afford it. It’s an unavoidable consequence of the very success of areas like Bethesda and Silver Spring.

This trend only accelerates as urban areas develop and become more sought after. The addition of many new apartment buildings in Silver Spring and Bethesda has not made either place a bargain. Moreover, it encourages renovation of older, more affordable housing into more expensive units.

Additionally, apartments and close-in townhomes are often more expensive than single-family homes due to the condo fees that go with them. Even if the price to buy is cheaper, condo fees can render the monthly cost unaffordable. And condo fees aren’t tax deductible and don’t go towards acquiring an asset like mortgage payments. A friend recently explained to me that this is why he couldn’t and didn’t move into downtown Wheaton.

GGW is aware of these problems and laments them but does not get that the high cost an inevitable part of the project. Indeed, from the perspectives of governments that support transit-oriented growth, it is the central point because higher land values and high-income residents provide more tax revenues.

Residents often do understand, which is why they some are resistant to new transit-oriented development even as others are excited. Renters rightly sense that they are going to have to move eventually. Small business owners will find commercial rents too high as the area catches fire. Homeowners worry that their taxes will increase along with home value–and the former matters a lot if you’d like to stay in your home awhile.

The Kentlands Vision of New Urbanism

The urban vision exemplified by the Kentlands–one of the earlier new urbanist developments–has proved very attractive to suburbanites. Central to this vision was to make suburban living a more community-oriented experience by taking what worked in older towns and applying it to the suburbs.

Density should be highest closer to the central shopping area but decline as you move away from the center to town homes and then close together single-member homes. Instead of dead-end cul-de-sacs that feed into a single artery, there is a more natural old-style town traffic plan.

Streets are tighter, which gives a more neighborly feel and slows down drivers–much like in Chevy Chase or Kensington. Garages are given less pride of place. The central shopping area or “downtown” provides people quick access to the necessities.

Other developments similar to the Kentlands have proven very popular in Montgomery. Unlike the Kentlands, several have the potential to be linked to transit, which should only increase their livability–good for residents–and desirability–good for the tax base.

Greater Greater Washington Rejects the Kentlands

Despite grudgingly acknowledging some positive aspects of the Kentlands, Greater Greater Washington is fundamentally less keen, envisioning much more dense developments with few, if any, single-family homes.

GGW attacked the Montgomery County Council’s decision to appoint the Kentlands developer over Ben Ross, one of its own contributors and former head of the Action Committee for Transit (ACT).  Ben Ross is critical of single-family homeowners in extreme terms that led councilmembers to repudiate his book:

A major obstacle, he says, is the resolve of owners of single-family homes to preserve “their privileged place in the residential pecking order.”

Probably not the way most Montgomery residents would like their Planning Board or County Council to view them. In another post, GGW writer Dan Reed takes Suburban Nation author Andres Duany to task and attacks new towns like the Kentlands for lacking diversity and being too affluent:

Despite having everything from one-room granny flats to million-dollar mansions, it’s still a homogeneous, affluent, predominantly white place. And now, twenty years later, much of D.C. is starting to look like Kentlands.

Again, the movement of high income, often but not necessarily white, residents into areas like Silver Spring and Washington is the intended result of the urban transit policies, not an accidental or surprising byproduct.

Make no mistake, GGW thinks developments like the Kentlands are better than traditional suburban sprawl. But, at heart, they view them as second rate. Dan Reed labels them “compared to places like DC, Arlington, or Silver Spring, they are relatively isolated, homogeneous, and car-dependent.”

At best, as one of his GGW co-bloggers writes, the Kentlands can be some sort of gateway drug to embracing true urbanism:

Thus, in a twist of fate, new urbanism’s main lasting benefit may be that it’s a gateway for suburbanites to become urbanitesa baby step towards regular urbanism. A necessary step, to be sure, but one quickly passed by.

The problem for GGW is that most people in Montgomery, Prince George’s, and Fairfax live in suburban developments and will continue to do so. Though it may shock GGW, they even like them and are proud of their homes–just like people in the city.

It is difficult enough to convince residents of neighborhoods who will not benefit from these very expensive transit lines to pay for them since they will not ease traffic and they will take away money from their transportation needs. Explanations that berate people for being affluent or privileged (read: almost all of Montgomery County) for making different choices than the GGW high-rise dream will hardly facilitate it.

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Montgomery County District 3 Round Up

council_districtsThree major candidates are fighting for the Democratic nomination for the open seat in Montgomery County Council District 3: Ryan Spiegel, Sid Katz and Tom Moore. Spiegel is likely the early favorite but Moore and Katz both have a decent chance as well.

Spiegel has served on the Gaithersburg City Council since 2007. He is also a partner at Paley Rothman, one of Montgomery County’s largest law firms. Previously, he worked as an associate at the national powerhouse firm of Winston & Strawn. Spiegel ran a strong delegate campaign in 2006 in District 17, narrowly losing to Jim Gilchrist. He has the support of much of the Democratic establishment for his county council bid. In particular, he received the endorsement of MCEA, a particularly useful endorsement that also signals he is seen as a good bet.

Sid Katz has served as Mayor of Gaithersburg in 1998. If he can mobilize his base within the City of Gaithersburg, which makes up roughly one-third of the district, and appeal to seniors in Rockville and Leisure World, he may be able to pull off a win.

Rockville City Councilmember Tom Moore’s candidacy bears watching. He is the only candidate from the City of Rockville. If he can solidify his constituency within Rockville, which makes up the majority of the district, the seat is his. It remains to be seen if he can do that. I also hear good things about Moore from my spies in the business community, although the same is true of Spiegel and to a lesser extent Katz. Interestingly, Moore’s business support is also paired with a Progressive Neighbors endorsement. Pleasing both constituencies will be quite a juggling act if he is elected.

A fourth candidate, Community Activist Guled Kassim, is also running. He is not seen as a serious threat presently. However, Kassim has a compelling personal story as an immigrant who served in the Marines and been active in the County.

Interestingly, it seems likely that none of the candidates will have six figure budgets in this race, increasingly unusual in open seat races in this populous and expensive county.

Rating: Lean Spiegel

Disclosure: Guled Kassim is a former client of mine. I have pitched Ryan Spiegel on Direct Mail Services in the past but am not working with him this cycle.

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